THERE ARE REQUIREMENTS THAT AN EMPLOYER OR A POTENTIAL EMPLOYER MUST MEET WHEN OBTAINING OR USING YOUR BACKGROUND CHECK REPORT. HAS YOUR EMPLOYER OR POTENTIAL EMPLOYER MET ALL THE REQUIREMENTS?

Did your employer or potential employer provide you with a written notice about getting your background check report and obtain a written authorization from you?

• Your employer or potential employer is required to provide you with a written disclosure notice which is clear and conspicuous indicating that they may obtain a consumer report on you.
• The written disclosure notice must be in a stand alone document and clearly indicate that a consumer report may be obtained. (i.e.The written notice should not contain any other topics such as release of liability).
• Your employer or potential employer must get your written authorization before obtaining your background check report.
• The written disclosure notice must have an authorization section where you can sign; OR
• The employer can give you a separate authorization form where you can sign.

Did the written authorization section or separate authorization form have a check-box giving you an option to request a copy of your background check report?

• In the written disclosure authorization section or form, there must be a Check-Box that you can mark to request a copy of any report your employer obtains.
• If you mark the Check-Box, the employer must provide you with a copy of the background check report within 3 days after they receive the report.

Did your employer or potential employer deny your employment, based in whole or in part, on a background check report with mistakes, errors, inaccuracies or other information that should not have been on your background check report?

• Your employer or potential employer should not consider mistakes, errors, inaccuracies, arrests not leading to convictions or expunged convictions when deciding to hire you, demote you, or fire you.
• Things that should not be on your background check report are: 1) mismatched people. (i.e. record of person other than you), 2) incomplete information about a case, 3) arrests (not-pending) that did not lead to conviction, 4) crimes that have been expunged or sealed, 5) misleading information (i.e.single charge listed as multiple times), 6) adverse driving history that are older than 7 years, 7) misclassified offenses (i.e. misdemeanor reported as felony), 8) arrests for which you have successfully completed a diversion, 9) certain minor marijuana arrests that are older than 2 years, and 10) convictions that are older than 7 years (currently being subject to constitutional challenges).

Pre-Adverse Action Notice – Did your employer or potential employer provide you with a copy of your background check report and a summary of rights under the Fair Credit Reporting Act before taking any adverse action (i.e. not hire you, demote you, or fire you)? 

• If your employer or potential employer intends to take any adverse action, (i.e. not hire you, demote you, or fire you) based in whole or in part, on your background check report, the employer is required to send you a copy of your background check report and a summary of your rights under the Fair Credit Reporting Act BEFORE they take any adverse action.
• If there are any mistakes, errors, inaccuracies or information that should not be on your background check report, you have the right to dispute your background check report with the employer and the background check company (often called a “consumer reporting agency” or “CRA”).

Adverse Action Notice 

• If your employer or potential employer takes any adverse action (not hire you, demote you, or fire you) because of any information on your background check report, they are required to give you another notice informing you that adverse action has been taken based in whole or in part on your background check report.
• This notice must also include the following 4 things:
• The name, telephone number and address of the background check company that furnished the background check report to your employer;
• A statement that the background check company did not make the decision to take the adverse action and is unable to provide you with specific reasons why the adverse action was taken;
• A statement that you are entitled to a free copy of the background check report from the background check company within 60 days; and
• A statement that you have a right to dispute the accuracy and/or completeness of your background check report with the background check company.

Purpose of the Law and Other Considerations

The purpose is to give job applicants the maximum amount of opportunity to correct any incomplete or inaccurate reports that could affect their chances of employment.

One big potential litigation area is violation of Title VII and investigation by the EEOC. Based on the new EEOC guidelines, employers cannot have a blanket policy of denial of employment to everybody with a criminal conviction. Employers frequently provide matrixes to background check companies to adjudicate and to automatically recommend to the employer whether to hire or not to hire.

There are potential Labor Code violations as employers cannot deny employment on the basis of arrests not resulting in conviction and on the basis of expunged convictions. (See Cal. Lab. C. §432.7; 2 CCR 7287.2(d)).

We have included the Federal Trade Commission’s (“FTC”) links regarding background checks. The FTC enforced the laws of the Fair Credit Reporting Act for over 40 years so the FTC links are very informative. However, please note that the Fair Credit Reporting Act is now being enforced by the  Consumer Financial Protection Bureau. 

http://www.consumer.ftc.gov/media/video-0026-employee-background-checks

http://www.consumer.ftc.gov/articles/0157-employment-background-checks

http://www.business.ftc.gov/documents/0487-background-checks-what-employers-need-know

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